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Digital Economy Bill contains mandatory age-verification, but avoids blocking

Posted by Sam Frances on Thursday, July 7th, 2016 at 17:01

The Digital Economy Bill, introduced to Parliament on Wednesday, will introduce mandatory age-verification for pornographic material available online in the UK.

15. Internet pornography: requirement to prevent access by persons under the age of 18

(1) A person must not make pornographic material available on the internet on a commercial basis to persons in the United Kingdom except in a way that secures that, at any given time, the material is not normally accessible by persons under the age of 18.

ISP blocking avoided, “mere conduit” etc. protected

The good news is that the Bill does not appear to contain any powers for requiring ISPs to block non-compliant websites. Instead, enforcement is focussed on the infringing sites themselves, and providers of payment, advertising, and other “ancillary services” (see below).

In addition, the Bill explicitly states that the E-Commerce Regulations protections for “mere conduit”, caching and hosting all apply.[1] This means, for example, that content platforms would not be held liable for infringing content of which they didn’t have “actual knowledge”.

Of course, all of this could change as the Bill is amended by Parliament, but for now the indications are good.

The age-verification regulator

The Bill does not select an age-verification regulator, but gives the Secretary of State the power to select or remove the regulator.[2]

The regulator must publish guidance on when it will consider pornographic material to be provided “on a commercial basis”, and what sort of age-verification measures it will consider adequate.[3]

The Bill awards the age-verification regulator some fairly broad information gathering powers, allowing them to demand any information they require to carry out their duties, from any “relevant person”.[4] A “relevant person” is any person is “who the age-verification regulator believes to be involved, or to have been involved, in making pornographic material available on the internet on a commercial basis to persons in the United Kingdom”.[5] No provision is made for appeals against such a notice, although an exception is made for legal professional privilege.[6]

Penalties and enforcement

The regulator can issue enforcement orders and/or financial penalties against a website operator which fails to put in place age-verification measures meeting its standards, or fails to comply with an information gathering order.[7] Financial penalties must not exceed £250,000 or 5% of turnover for the most recent accounting period, whichever is greater.[8]

The regulator can also issue notices informing “payment-services providers or ancillary service providers” about non-compliant websites.[9]

“Ancillary service providers” include online advertisers and anyone:

15 (6) …who appears to the age-verification regulator to—

(a) provide, in the course of a business, services which enable or facilitate the making available of pornographic material or prohibited material on the internet by the non-complying person;

This presumably could include hosting providers and content platforms, but would be unlikely to include ISPs, although that depends on how broadly “facilitates” could be interpreted. Who exactly counts as an “ancillary service providers” would be clarified by guidance issued by the regulator.[10]

Notices to ancillary service providers would appear to be purely informational. However, it seems likely that, in the case of platforms and hosting providers, the intent is to provide them with “actual knowledge” of the infringing content, so that they can no longer claim immunity from liability under the E-Commerce Regulations.[11]

In addition, the regulator has discretion over how zealously to enforce age-verification. If they choose, they can use their enforcement powers “principally in relation to persons who” make pornography commercially available “to a large number of persons, or a large number of persons under the age of 18”, and “generate a large amount of turnover by doing so”.

Appeals

The Bill doesn’t appear to directly require the age-verification regulator to set up an appeals process, although it does forbid the regulator from making a determination about whether someone has broken the rules “unless it has allowed that person an opportunity to make representations about why that determination should not be made”.[12]

However, the Secretary of State must not appoint a regulator “unless satisfied that arrangements will be maintained by the age-verification regulator for appeals” to financial penalty and enforcement notices, and notices to payment or ancillary service providers.

USO, Switching, automatic compensation etc.

Age-verification is only one part of this Bill, which also contains provisions on broadband universal service, processes for consumers switching broadband providers, and more. We hope to bring you more details on these in a future article.

 

[1] Section 15 subsection 4

[2] Section 17

[3] Section 15 subsection (3)

[4] Section 19 subsection (1)

[5] Section 19 subsection (3)

[6] Section 19 subsection (5)

[7] Section 20 subsections (1) and (2)

[8] Section 21 subsection (2)

[9] Section 22 subsection (1)

[10] Section 22 subsection (7)

[11] http://www.legislation.gov.uk/uksi/2002/2013/regulation/19/made

[12] Section 20 subsection (3)

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